Facts
The appellant [X.] , an independent naturopathic practitioner, obtained a total of 120 capsules of the product "Libidfit" via the internet from the Netherlands in October and December 2004. He sold these capsules to his patient [A.] , who had consulted him for potency problems, at the cost price of a total of 1,200 Swiss francs.
By penal order dated June 14, 2005, [X.] was convicted by Swissmedic of an offence against the Therapeutic Products Act (TPA). The Presidency of the District Court of Zofingen and the High Court of the Canton of Aargau confirmed the conviction at first and second instance.
Considerations
The Federal Supreme Court quashed the judgment of the High Court and remanded the case for a new assessment by the lower court. It concluded that the lower courts had not sufficiently justified the elements of the offence of endangering human health within the meaning of Art. 86 para. 1 TPA.
While the product "Libidfit" imported by the appellant is to be classified as a medicinal product within the meaning of the TPA, as it was advertised for the treatment of erectile dysfunction, it is not sufficient for a conviction under Art. 86 para. 1 TPA that the product could be health-endangering under certain circumstances. Rather, it must be proven that the appellant's conduct has actually…